Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Order Granting Accelerated Approval of Proposed Rule Change Relating to a Six-Month Pilot Program To Adopt New Initial and Continued Listing Standards, 69166-69172 [E6-20211]

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69166
Federal Register / Vol. 71, No. 229 / Wednesday, November 29, 2006 / Notices
or delivery at the end of the quarter. In
such case, the customer would receive
a quarterly statement even though it had
consented not to receive one. BNP
contended that the customer would be
confused by such statement and the
statement would not benefit the
customer.12
The SIA letter supported the proposed
amendment to NYSE Rule 409 but
commented that the proposal would
unnecessarily and impractically require
individual firms to retain a record that
reflects each institution’s consent to the
suspension of statements. SIA proposed
that the NYSE interpret proposed
amended Rule 409 to make an
institution’s notification to Omgeo 13
and Omgeo’s population of their
database sufficient for recordkeeping
purposes.
III. NYSE’s Response to Comments
In filing Amendment No. 2, NYSE
addressed comments on the proposal by
revising proposed amended Rule
409(a)(3) to confirm that transactional
positions, such as those arising from a
fail to receive or deliver money or
securities, will not be deemed money or
security positions for purposes of this
rule. This proposed change is intended
to avoid the possibility raised by BNP
that firms could be in violation of the
rule due to a failed receipt or delivery
at the end of a quarter.
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IV. Discussion
The Commission finds that the
proposed rule change, as amended, is
consistent with the requirements of the
Exchange Act and the rules and
regulations thereunder applicable to a
national securities exchange.14 In
particular, the Commission finds that
the proposed rule change is consistent
with Section 6(b)(5) of the Exchange
Act.15 Section 6(b)(5) of the Act
requires, among other things, that the
rules of an exchange be designed to
promote just and equitable principles of
trade, to remove impediments to and
perfect the mechanism of a free and
open market and national market
system, and in general, to protect
investors and the public interest. The
12 In its comment, discussed below, SIA does not
believe that condition (3) should apply to those
accounts that show a money or position balance at
the end of the quarter because of unsettled items or
a ‘‘DK.’’
13 According to SIA, Omgeo, LLC is the leading
industry provider of institutional processing
services. SIA believes that other vendors would also
provide such indicators.
14 In approving this proposed rule change, the
Commission has considered whether the proposed
rule change will promote efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
15 15 U.S.C. 78f(b)(5).
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Commission believes that the proposed
rule change, as amended, should
remove impediments to and perfect the
mechanisms of a free and open market
and national market system by removing
an unnecessary and potentially costly
obligation on firms to deliver quarterly
account statements to DVP/RVP
customers. At the same time, the
proposal maintains certain investor
protections (i.e., requiring NYSE
member organizations to obtain
affirmative consent to the suspension of
quarterly account statements, preserving
the ability of customers to obtain
particular statements upon request and
to resume receipt of statements
promptly upon request, and precluding
member organizations from unilaterally
terminating delivery of such
statements). Therefore, the Commission
believes the proposal is consistent with
the Exchange Act.
Accelerated Approval of Amendment
No. 2
The Commission finds good cause to
approve Amendment No. 2 to the
proposed rule change, as amended,
prior to the thirtieth day after
Amendment No. 2 is published for
comment in the Federal Register
pursuant to Section 19(b)(2) of the
Act.16 Amendment No. 2 clarifies that
transactional positions, such as those
arising from a fail to receive or deliver
money or securities, will not be deemed
money or security positions for
purposes of the proposed amended rule.
The Commission finds that Amendment
No. 2 appropriately addresses a concern
raised by a commenter.17 For these
reasons, the Commission believes that
good cause exists to accelerate approval
of Amendment No. 2.
V. Conclusion
It is therefore ordered, pursuant to
Section 19(b)(2) of the Exchange Act,18
that the proposed rule change (SR–
NYSE–2005–90), as amended by
Amendment No. 1 thereto, be, and
hereby is, approved, and that
Amendment No. 2 thereto, be, and
hereby is, approved on an accelerated
basis.
For the Commission, by the Division of
Market Regulation, pursuant to delegated
authority.19
Nancy M. Morris,
Secretary.
[FR Doc. E6–20227 Filed 11–28–06; 8:45 am]
BILLING CODE 8011–01–P
16 15
U.S.C. 78s(b)(2).
BNP letter, footnote 6, supra.
18 15 U.S.C. 78s(b)(2).
19 17 CFR 200.30–3(a)(12).
17 See
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SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–54796; File No. SR–
NYSEArca–2006–85]
Self-Regulatory Organizations; NYSE
Arca, Inc.; Notice of Filing and Order
Granting Accelerated Approval of
Proposed Rule Change Relating to a
Six-Month Pilot Program To Adopt New
Initial and Continued Listing Standards
November 20, 2006.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’) 1 and Rule 19b–4 thereunder,2
notice is hereby given that on November
17, 2006, NYSE Arca, Inc. (‘‘NYSE
Arca’’ or ‘‘Exchange’’) filed with the
Securities and Exchange Commission
(‘‘Commission’’ or ‘‘SEC’’) the proposed
rule change as described in Items I and
II below, which Items have been
substantially prepared by the Exchange.
The Commission is publishing this
notice to solicit comment on the
proposed rule change from interested
persons. For the reasons discussed
below, the Commission is granting
accelerated approval of the proposed
rule change, as a six-month pilot, until
May 29, 2007.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes, on a sixmonth pilot program basis (the ‘‘Pilot
Program’’), to make significant revisions
to its initial and continued financial
listing standards for operating
companies.3 The text of the proposed
rule change is available on the
Exchange’s Web site at
www.nysearca.com, at the Exchange’s
Office of the Secretary and at the
Commission’s Public Reference Room.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission, the
self-regulatory organization included
statements concerning the purpose of
and basis for the proposed rule change
and discussed any comments it received
on the proposed rule change. The text
of these statements may be examined at
1 15
U.S.C. 78s(b)(1).
CFR 240.19b–4.
3 The Commission notes that the proposed
changes are primarily to the initial and continued
listing standards of common stock and common
stock equivalent securities, preferred stock and
similar issues and secondary classes of common
stock. Some changes are also being made to the
listing standards for bonds and debentures,
warrants, contingent value rights, other securities,
and index-linked exchangeable notes.
2 17
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the places specified in Item III below.
The self-regulatory organization has
prepared summaries, set forth in
Sections A, B, and C below, of the most
significant aspects of such statements.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
On March 7, 2006, Archipelago
Holdings, Inc. and the New York Stock
Exchange, Inc. completed their merger
(the ‘‘Merger’’), creating NYSE Group,
Inc. (‘‘NYSE Group’’). NYSE Group is a
holding company that operates, among
other subsidiaries, two securities
exchanges: New York Stock Exchange
LLC (‘‘NYSE’’) and NYSE Arca Equities,
Inc. (‘‘NYSE Arca Equities’’ or the
‘‘Corporation’’).4 NYSE Arca Equities
conducts its equities trading operations
through its equities trading facility,
NYSE Arca, L.L.C. (also referred to as
the ‘‘NYSE Arca Marketplace’’).
In connection with the Merger, NYSE
Arca Marketplace examined all aspects
of its listings program, and as a result,
determined to make substantial
modifications and enhancements to its
listing standards. Accordingly, with this
filing, NYSE Arca is proposing
significant revisions to the initial and
continued listing criteria applicable to
operating companies set forth in NYSE
Arca Equities Rule 5, completely
replacing the current tiered structure
with a single set of numerical and
jlentini on PROD1PC65 with NOTICES
4 The Commission notes that NYSE Arca is
actually the registered national securities exchange
and NYSE Arca Equities is a wholly-owned
subsidiary of NYSE Arca.
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15:37 Nov 28, 2006
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financial requirements.5 The principal
objectives of these proposed revisions
are to upgrade the financial condition,
shareholder interest, and stature of
issuers listing on NYSE Arca
Marketplace; more closely align NYSE
Arca Marketplace’s listing standards
and structure with the NYSE; and
enhance NYSE Arca Marketplace’s
competitive position.6
NYSE Arca Equities Rule 5.1(a)
provides that the Board of the Directors
of the Exchange will make
determinations as to whether to list
securities or admit securities to unlisted
trading privileges on the Exchange.
Similarly, current NYSE Arca Equities
Rule 5.2(a) provides that the prescribed
forms of applications to list securities
on the Exchange will be determined by
the Board of Directors. This filing
proposes to amend both of the
aforementioned requirements to state
that the Exchange will make such
determinations. Such decisions will be
made by the chief executive officer of
the Exchange or by staff of the Exchange
pursuant to authority delegated by the
chief executive officer. In addition,
NYSE Arca Equities Rule 5.2(a) would
be amended to state that the Exchange
may deny listing or apply additional or
more stringent criteria based on any
5 This filing relates only to quantitative (financial)
original and continued listing standards applicable
to operating companies. It does not relate to listing
standards for corporate governance, exchange
traded funds, open and closed-end funds,
commodity-based trusts, trust issued receipts,
portfolio depositary receipts, investment company
units or other types of structured products. See
supra note 3.
6 The Commission recently approved substantial
revisions to NYSE Arca’s listing fees. See Securities
Exchange Act Release No. 54007 (June 16, 2006), 71
FR 36155 (June 23, 2006) (SR–PCX–2006–16).
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69167
event, condition, or circumstance that
makes the listing of the company
inadvisable or unwarranted in the
opinion of the Exchange. Such
determination could be made even if the
company meets the standards set forth
below.
Summary of Current and Proposed
Initial Listing Standards
Summary of Current Initial Listing
Standards for Operating Companies
Currently, the NYSE Arca
Marketplace has a two-tier listing
structure, classifying listed securities as
either Tier I or Tier II. For their common
stock to qualify for initial listing as a
Tier I security, issuers must satisfy,
among other things, the numerical
criteria set forth in NYSE Arca Equities
Rule 5.2(c).7 To qualify for initial listing
as a Tier II security, issuers must satisfy,
among other things, the numerical
criteria set forth in NYSE Arca Equities
Rule 5.2(k). Both Rule 5.2(c) and Rule
5.2(k) also provide that an issuer may
qualify under either a Basic or an
Alternate set of listing criteria. To be
eligible to list, an issuer need only
satisfy all of the criteria under one of
these four separate sets of standards.8
7 In addition to the numerical criteria set forth in
Rules 5.2(c) and 5.2(k), issuers must also satisfy
certain qualitative requirements, including
corporate governance-related standards set forth in
NYSE Arca Equities Rule 5.3. These corporate
governance rules are not the subject of this
proposal.
8 NYSE Arca Equities Rule 5.2(a) provides that
approval of listing applications is a matter solely
within the discretion of NYSE Arca Equities, and
the fact that an issuer may meet the applicable
listing requirements does not necessarily mean that
its application will be approved.
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Federal Register / Vol. 71, No. 229 / Wednesday, November 29, 2006 / Notices
These requirements are:
Tier I (Rule 5.2(c))
Tier II (Rule 5.2(k))
Basic
Net tangible assets 9 ........................................................................................
Net worth 10 ......................................................................................................
Pre-tax income 11 .............................................................................................
Net income 12 ...................................................................................................
Public float (shares) .........................................................................................
Public beneficial holders 13 ..............................................................................
Market value ....................................................................................................
Operating history .............................................................................................
Price 14 .............................................................................................................
jlentini on PROD1PC65 with NOTICES
Proposed Initial Listing Standards for
Common Stock and Common Stock
Equivalent Securities
With this filing, NYSE Arca is
proposing to eliminate the Tier I and II
classifications and replace, in their
entirety, the current Tier I and Tier II
numerical standards for initial listing
for common stock set forth in NYSE
Arca Rules 5.2(c) and (k), respectively.
Companies whose common stock is
listed with a Tier II designation will be
able to remain listed under the existing
Tier II rules as long as they are in
compliance with the maintenance
requirements of Arca Equities Rule
5.5(h). However, the Exchange will no
longer list any new issuers or additional
classes of securities with a Tier II
designation.
In place of the existing Tier I and Tier
II standards, this filing proposes to
9 NYSE Arca Equities Rule 5.1(b)(10) defines ‘‘net
tangible assets’’ as the amount of funds remaining
after deducting intangible assets from stockholders’
equity. This rule further provides that intangible
assets include, but are not limited to, goodwill,
patents, copyrights, trademarks, leaseholds,
franchises, licenses, permits, research and
development costs, organization costs, and similar
types of property rights.
10 NYSE Arca Equities Rule 5.1(b)(9) defines ‘‘net
worth’’ as total assets (excluding the value of
goodwill) less total liabilities.
11 NYSE Arca Equities Rule 5.2(c)(4) provides that
an issuer must have pre-tax income from continuing
operations of at least $750,000 in the last fiscal year
or two of the last three fiscal years.
12 NYSE Arca Equities Rule 5.2(k)(4) provides that
an issuer must have net income from continuing
operations of at least $100,000 in the last fiscal year
or in two of the last three fiscal years, or total net
tangible assets of $2,500,000.
13 NYSE Arca Equities Rule 5.2(c)(2) provides that
issuers must have at least 800 public beneficial
holders if the issuer has at least 500,000 and less
than 1,000,000 shares publicly held, or a minimum
of 400 public beneficial holders if the issuer has
either: (i) At least 1,000,000 shares publicly held;
or (ii) at least 500,000 shares publicly held and
average daily trading volume in excess of 2,000
shares for the six months preceding the date of
application.
14 NYSE Arca Equities Rules 5.2(c)(5) and
5.2(k)(5) provide that the issuer must maintain the
minimum price for the majority of business days for
the most recent six-month period prior to the date
of application, and the price must be at or above
the minimum per share at the time of application.
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Alternate
Basic
Alternate
........................
$4,000,000
$750,000
........................
500,000
800 or 400
$3,000,000
........................
$5
........................
$12,000,000
........................
........................
1,000,000
400
$15,000,000
3 years
$3
$2,000,000
........................
........................
$100,000
500,000
500
$1,500,000
3 years
$3
........................
$8,000,000
........................
........................
1,000,000
500
$2,000,000
........................
$1
require for initial listing that, at the time
of initial listing, the listed class of
common stock or common stock
equivalent securities 15 shall have:
• At least 1.1 million publicly held
shares.
• A closing price per share of $5 or
more.
• A minimum of 400 round lot
shareholders.
In addition, the requirements of one
of Standards One, Two or Three below
must be met:
Standard One
• The issuer of the security had
annual income from continuing
operations before income taxes of at
least $1 million in the most recently
completed fiscal year or in two of the
last three most recently completed fiscal
years.
• The market value of publicly held
shares is at least $8 million.
• The issuer of the security has
stockholders’ equity of at least $15
million.
Standard Two
• The issuer of the security has
stockholders’ equity of at least $30
million.
• The market value of publicly held
shares is at least $18 million.
• The issuer has a two-year operating
history.
Standard Three
• The market value of publicly held
shares is at least $20 million.
• The issuer has:
Æ A market value of listed securities
of $75 million (currently traded issuers
must meet this requirement and the $5
closing price requirement for 90
consecutive trading days prior to
applying for listing); or
15 Proposed NYSE Arca Equities Rule 5.1(b)(26)
defines common stock equivalent as ‘‘ordinary
shares, ADRs, American Depository Shares, global
depository shares, depository shares, shares or
certificates of beneficial interest of trusts, and other
similar issues that have the same characteristics of
common stock.’’
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Æ Total assets and total revenue of
$75 million each for the most recently
completed fiscal year or two of the last
three most recently completed fiscal
years.
In evaluating compliance with these
standards, the Exchange will consider
amounts contained in a company’s pro
forma financial statements provided in
a filing with the Commission pursuant
to Commission rules and regulations
governing Article 11 ‘‘Pro forma
information of Regulation S–X Part
210—Form and Content of and
Requirements for Financial Statements.’’
This shall include, without limitation,
adjustments relating to the proceeds of
an offering. In the case of foreign private
issuers (as such term is defined in Rule
3b–4 under the Act), the Exchange will
take into account global market
capitalization in evaluating compliance
with the market capitalization
requirements of this rule.
This revised rule shall apply to
common stock and common stock
equivalents, including, but not limited
to: Ordinary shares, American
Depository Receipts (‘‘ADRs’’),
American Depository Shares, global
depository shares, depository shares,
shares or certificates of beneficial
interest of trusts, and other similar
issues that have the same characteristics
of common stock.
Summary of Current Initial Listing
Standards for Preferred Stock and
Similar Issues
Currently, as set forth in NYSE Arca
Equities Rule 5.2(d), in the case of
preferred stock and similar issues, the
following listing requirements among
others must be met:
• The issuer must meet the net worth
and earnings requirements as set forth
in the Tier I Basic Listing Requirements
under Rule 5.2(c), and must meet and
appear to be able to service the dividend
requirements for the preferred stock.
• If the company’s common stock is
traded on NYSE Arca or on either the
American Stock Exchange LLC
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(‘‘Amex’’) or NYSE, the following public
distribution requirements must be met:
At least 100,000 preferred shares
publicly held and an aggregate market
value of at least $2,000,000, and a
minimum closing bid price of $10.
• If the related common stock is not
traded on any of the above referenced
exchanges then the requirements are: At
least 400,000 preferred shares publicly
held and an aggregate market value of at
least $4,000,000, and a minimum
closing bid price of $10. At least 800
public beneficial holders of 100 shares
or more shall also be required.
Proposed Initial Listing Standards for
Preferred Stock and Similar Issues and
Secondary Classes of Common Stock
For initial listing, if the common stock
or common stock equity equivalent
security of the issuer is listed on the
Exchange or on the NYSE, The Nasdaq
Global Market or the Amex, the issue
shall have:
• At least 200,000 publicly held
shares;
• A market value of publicly held
shares of at least $4,000,000;
• A minimum closing price per share
of $5;
• A minimum of 100 round lot
shareholders.
Alternatively, in the event the issuer’s
common stock or common stock
equivalent security is not listed on
either the Exchange or on the NYSE,
The Nasdaq Global Market or the Amex,
the preferred stock and/or secondary
class of common stock may be traded on
the Exchange so long as the security
satisfies the initial listing criteria for
common stock.
Summary of Current and Proposed
Continued Listing Standards
Current Continued Listing Standards for
Common Stock
To qualify for continued listing as a
Tier I security, issuers must satisfy,
among other things, the numerical
criteria set forth in NYSE Arca Equities
Rule 5.5(b). To qualify for continued
listing as a Tier II security, issuers must
satisfy, among other things, the
numerical criteria set forth in NYSE
Arca Equities Rule 5.5(h).
These requirements are:
Tier I (Rule 5.5(b))
Net tangible assets or Net worth ........................................
Public float (shares) ............................................................
Public beneficial holders .....................................................
Market value .......................................................................
Bid price 18 ..........................................................................
Proposed Continued Listing Standards
for Common Stock and Common Stock
Equivalent Securities
jlentini on PROD1PC65 with NOTICES
With this filing, NYSE Arca is
proposing to eliminate the two tiered
structure and replace, in their entirety,
the current Tier I and Tier II numerical
standards for continued listing for
common stock set forth in NYSE Arca
Rules 5.5(b) and (h), respectively, except
that Rule 5.5(h) will continue to be
applied to common stocks listed with a
Tier II designation prior to the
effectiveness of this filing. In their
place, this filing proposes in new Rule
5.5(b) to require for continued listing
that a listed common stock must meet
the criteria set forth in either Continued
Listing Standard One or Continued
Listing Standard Two below to continue
to remain listed on the Exchange. All of
the existing Tier I issuers and securities
currently meet the requirements of the
proposed continued listing standards.
As such, the Exchange does not need to
provide a phase in period for
compliance with the new rules and will
be able to apply them as soon as the
Commission approves the Pilot
Program.
16 If the issuer has sustained losses from
continuing operations and/or net losses in two of
the last three fiscal years, then it must have a
minimum of $2 million in net worth. If the issuer
has sustained losses from continuing operations
and/or net losses in three of the last four fiscal
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Jkt 211001
Continued Listing Standard One
• 750,000 publicly held shares;
• Market value of publicly held
shares of $5 million;
• The issuer has stockholders’ equity
of at least $10 million; and
• 400 shareholders of round lots.
Continued Listing Standard Two
• The issuer has:
Æ A market value of listed securities
of $50 million or, in the case of non-U.S.
companies, a global market
capitalization of $50 million; or
Æ total assets and total revenue of $50
million each for the most recently
completed fiscal year or two of the last
three most recently completed fiscal
years.
• 1,100,000 shares publicly held;
• Market value of publicly held
shares of $15 million; and
• 400 shareholders of round lots.
In the case of a non-U.S. company
with ADRs listed on the Exchange, the
term ‘‘global market capitalization’’
years, then it must have a minimum of $4 million
in net worth.
17 Alternatively, an issuer must have at least 300
beneficial holders of 100 shares or more.
18 NYSE Arca Equities Rules 5.5(b) and (h)
provide that NYSE Arca Equities may waive the
minimum bid price requirements upon
PO 00000
Tier II (Rule 5.5(h))
$2,000,000 or 4,000,000 16 ................................................
200,000 ..............................................................................
400 17 .................................................................................
$1,000,000 .........................................................................
$3 .......................................................................................
Under the proposed new standards, a
listed common stock must meet each of
the criteria set forth in Continued
Listing Standards One or Two below to
continue to remain listed on the
Exchange.
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69169
$500,000 or 2,000,000.
300,000.
250.
$500,000.
$1.
means (x) the closing sale price per
share of the common stock or common
stock equivalent security underlying the
ADRs multiplied by (y) the number of
shares of such common stock or
common stock equivalent security
outstanding worldwide (including any
shares underlying outstanding ADRs).
In addition, an issuer will also be
considered to be below compliance
standards if the average closing price of
a security is less than $1.00 over a
consecutive 30 trading-day period. Once
notified, the issuer must bring its share
price and average share price back
above $1.00 by six months following
receipt of the notification. The issuer
must, however, notify the Exchange,
within 10 business days of receipt of the
notification, of its intent to cure this
deficiency or be subject to suspension
and delisting procedures. Once a U.S.
issuer is notified that it is below
compliance, it is required to issue a
press release disclosing the fact that it
has fallen below the continued listing
standards of the Exchange concurrent
with filing notice of such noncompliance with the SEC as required by
Form 8–K. Once a foreign private issuer
is notified that it is below compliance,
the issuer has 30 days to issue a press
consideration of market conditions, the issuer’s
capitalization, the number of outstanding and
publicly held shares, and any other factors NYSE
Arca Equities deems appropriate. This proposal
eliminates this provision and replaces it with the
‘‘cure period’’ set forth in revised Rule 5.5(b).
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release disclosing the fact that it has
fallen below the continued listing
standards of the Exchange. If the foreign
private issuer fails to issue this press
release during the allotted 30 days, the
Exchange will issue the requisite press
release. In the event that at the
expiration of the six-month cure period,
both a $1.00 share price and a $1.00
average share price over the preceding
30 trading days are not attained, the
Exchange will commence suspension
and delisting procedures.
Notwithstanding the foregoing, if an
issuer determines that, if necessary, it
will cure the price condition by taking
an action that will require approval of
its shareholders, it must so inform the
Exchange in the above referenced
notification, must obtain the
shareholder approval by no later than its
next annual meeting, and must
implement the action promptly
thereafter. The price condition will be
deemed cured if the price promptly
exceeds $1.00 per share, and the price
remains above the level for at least the
following 30 trading days.
Notwithstanding the foregoing, if the
subject security is not the primary
trading common equity security of the
issuer (e.g., a tracking stock or a
preferred class), as discussed in more
detail below, the Exchange may
determine whether to apply this test to
such security after evaluating the
financial status of the issuer.
jlentini on PROD1PC65 with NOTICES
Continued Listing Standards for
Preferred Stock and Similar Issues and
Secondary Classes of Common Stock
NYSE Arca proposes to replace its
existing continued listing standards for
preferred stock and similar issues with
the requirements described below and
to also apply those requirements to
secondary classes of common stock.
For continued listing, if the common
stock or common stock equity
equivalent security of the issuer is listed
on the Exchange or on the NYSE, The
Nasdaq Global Market or the Amex, the
issue shall have:
• At least 100,000 publicly held
shares;
• A market value of publicly held
shares of at least $1,000,000;
• A minimum closing price per share
of $1;
• A minimum of 100 round lot
shareholders.
If the preferred stock or similar issue
is the issuer’s only security listed on the
Exchange, after evaluating the financial
status of the issuer, the Exchange may
choose to apply the six-month cure
period provided under the proposed
common stock continued listing
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15:37 Nov 28, 2006
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standards to any failure to maintain a $1
closing price.
Alternatively, in the event the issuer’s
common stock or common stock
equivalent security is not listed on
either the Exchange or on the NYSE,
The Nasdaq Global Market or the Amex,
the preferred stock and/or secondary
class of common stock may be listed on
the Exchange so long as the security
satisfies the continued listing criteria for
common stock.
Other Securities Pre-Tax Income
Requirement
To conform to the parallel provision
in Standard One of the proposed
common stock initial listing standards,
the Exchange proposes to increase the
pre-tax income from continuing
operations standard of NYSE Arca
Equities Rule 5.2(e) (‘‘Bonds and
Debentures’’), NYSE Arca Equities Rule
5.2(g) (‘‘Contingent Value Rights’’),
NYSE Arca Equities Rule 5.2(j)(1)
(‘‘Other Securities’’) and NYSE Arca
Equities Rule 5.2(j)(4) (‘‘Index-Linked
Exchangeable Notes’’) from $750,000 to
$1 million.19
III. Solicitation of Comments
Interested persons are invited to
submit written data, views and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
Electronic Comments
• Use the Commission’s Internet
comment form (http://www.sec.gov/
rules/sro.shtml); or
• Send an e-mail to rulecomments@sec.gov. Please include File
Number SR–NYSEArca–2006–85 on the
subject line.
Paper Comments:
• Send paper comments in triplicate
to Nancy M. Morris, Secretary,
Securities and Exchange Commission,
100 F Street, NE., Washington, DC
20549–1090.
All submissions should refer to File
Number SR–NYSEArca–2006–85. This
file number should be included on the
subject line if e-mail is used. To help the
Commission process and review your
2. Statutory Basis
comments more efficiently, please use
The Exchange believes the proposed
only one method. The Commission will
rule change is consistent with Section
post all comments on the Commission’s
6(b) of the Act,20 in general, and furthers Internet Web site (http://www.sec.gov/
the objectives of Section 6(b)(5) of the
rules/sro.shtml). Copies of the
Act 21 in particular, because it is
submission, all subsequent
designed to prevent fraudulent and
amendments, all written statements
manipulative acts and practices, to
with respect to the proposed rule
promote just and equitable principles of change that are filed with the
trade, to foster cooperation and
Commission, and all written
coordination with persons engaged in
communications relating to the
facilitating transactions in securities,
proposed rule change between the
and to remove impediments to and
Commission and any person, other than
perfect the mechanism of a free and
those that may be withheld from the
open market and a national market
public in accordance with the
system.
provisions of 5 U.S.C. 552, will be
available for inspection and copying in
B. Self-Regulatory Organization’s
the Commission’s Public Reference
Statement on Burden on Competition
Room. Copies of such filing also will be
The Exchange does not believe that
available for inspection and copying at
the proposed rule change will impose
the principal office of the Exchange. All
any burden on competition that is not
comments received will be posted
necessary or appropriate in furtherance
without change; the Commission does
of the purposes of the Act.
not edit personal identifying
information from submissions. You
C. Self-Regulatory Organization’s
should submit only information that
Statement on Comments on the
you wish to make available publicly. All
Proposed Rule Change Received From
submissions should refer to File
Members, Participants, or Others
Number SR–NYSEArca–2006–85 and
Written comments on the proposed
should be submitted on or before
rule change were neither solicited nor
December 20, 2006.
received.
IV. Commission’s Findings and Order
19 The Commission notes that, among other
Granting Accelerated Approval of
things, the Exchange proposes other clarifying
Proposed Rule Change
changes, additional definitions, and different net
worth standards for bonds and debentures,
contingent value rights, other securities, and indexlinked exchangeable notes.
20 15 U.S.C. 78f(b).
21 15 U.S.C. 78f(b)(5).
PO 00000
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Fmt 4703
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The Commission finds that the
proposed rule change is consistent with
the requirements of the Act and the
rules and regulations thereunder
E:\FR\FM\29NON1.SGM
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Federal Register / Vol. 71, No. 229 / Wednesday, November 29, 2006 / Notices
applicable to a national securities
exchange.22 In particular, the
Commission finds that the proposed
rule change is consistent with Section
6(b)(5) of the Act,23 which requires that
an exchange have rules designed, among
other things, to promote just and
equitable principles of trade, to remove
impediments to and perfect the
mechanism of a free and open market
and a national market system, and are
not designed to permit unfair
discrimination between customers,
issuers, brokers, or dealers.
The Exchange proposes to make
significant changes to its initial and
continued listing standards. Among
other things, the Exchange would no
longer have a two-tiered listing
structure. The Exchange represents that
all existing Tier I issuers would meet
one of the proposed continued listing
standards set forth in proposed NYSE
Arca Equities Rule 5.5(h). Further, the
proposal would include a grandfather
clause to ensure that the existing Tier II
issuers would have the option to remain
listed on the Exchange for as long as
they meet the continued listing
standards. The Commission believes
that the proposal is designed not to
permit unfair discrimination among
issuers, since the proposal would treat
all prospective issuers and existing
Exchange-listed issuers equally.
Although the proposal significantly
restructures and changes NYSE Arca
listing standards, as discussed below,
the changes are substantially similar to
The Nasdaq Global Market initial and
continued listing standards. Based on
this, the Commission believes it is
reasonable for the Exchange to
determine that companies that meet
these new listing standards are
appropriate for inclusion and continued
listing on NYSE Arca. For these reasons,
as discussed in more details below, the
Commission finds that the proposal is
consistent with the requirements of the
Act.
jlentini on PROD1PC65 with NOTICES
A. Initial Listing Standards
As proposed, the Exchange’s common
stock or common stock equivalent
securities 24 initial listing standards
would be significantly modified and the
Exchange would no longer have Tier I
or Tier II securities. Common stock or
common stock equivalent securities
would need: (1) At least 1.1 million
publicly held shares; (2) a closing price
22 In approving this proposed rule change, the
Commission notes that it has considered the
proposed rules’ impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
23 15 U.S.C. 78f(b)(5).
24 See proposed NYSE Arca Equities Rule
5.1(b)(26).
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15:37 Nov 28, 2006
Jkt 211001
per share of $5 or more; and (3) a
minimum of 400 round lot shareholders,
in addition to meeting the additional
standards set forth in one of three
alternatives.25 Among other things,
Standard 1 and Standard 2 would
replace the current net worth
requirement with an increased
stockholders’ equity requirement of
$15,000,000 and $30,000,000,
respectively. In addition, under
Standard 3, the current net worth
requirement would be eliminated and
the issuer would be required to have a
market value of listed securities of
$75,000,000 or total assets and total
revenue of $75,000,000 each for the
most recently completed fiscal year or
two of the last three most recently
completed fiscal years. The Commission
notes that the proposed initial listing
standards for common stock or common
stock equivalent securities are
substantially similar to The Nasdaq
Global Market initial listing standards.26
The Exchange’s proposed preferred
stock (and similar issues) and secondary
classes of common stock initial listing
standards would also be significantly
modified. The Exchange would
eliminate the current net worth and
earnings requirements, and increase the
current publicly held shares
requirement and market value
requirement. The Exchange would also
lower the current bid price requirement.
As proposed, if the common stock or
common stock equivalent security of the
issuer is listed on the Exchange, NYSE,
The Nasdaq Global Market, or Amex,
these securities must have: (1) At least
200,000 publicly held shares; (2) a
market value of publicly held shares of
at least $4 million; (3) a closing price
per share of $5 or more; and (4) a
minimum of 100 round lot
shareholders.27 If the common stock or
common stock equivalent security of the
issuer is not listed on the Exchange,
NYSE, The Nasdaq Global Market, or
Amex, these securities must satisfy the
initial listing standards for common
stock.28 The Commission notes that
these requirements are substantially
similar to The Nasdaq Global Market
initial listing standards.29
The Exchange also proposes to amend
the initial listing standards for bonds
and debentures and contingent value
rights by increasing the net worth
requirement and pre-tax income
requirement consistent with the
proposed common stock initial listing
proposed NYSE Arca Equities Rule 5.2(c).
Nasdaq Rule 4420(a)–(c).
27 See proposed NYSE Arca Equities Rule 5.2(d).
28 See proposed NYSE Arca Equities Rule 5.2(d).
29 See Nasdaq Rule 4420(k).
69171
standards. In addition, the Exchange
proposes to amend the initial listing
standards for other securities and indexlinked exchangeable notes to add a pretax income requirement, consistent with
the pre-tax income requirements of the
common stock initial listing standards.
The pre-tax income requirement for
these securities is being raised from
$750,000 to $1,000,000.
Based on the foregoing, the
Commission believes that the proposed
amendments to the NYSE Arca Equities
initial listing standards are consistent
with the requirements of the Act.
B. Continued Listing Standards
The Commission believes that the
proposed amendments to the NYSE
Arca Equities continued listing
standards are consistent with the
requirements of the Act. The Exchange
proposes to amend the common stock or
common stock equivalent securities
continued listing standard, by requiring
that common stock must meet the
standards set forth in one of two
alternatives.30 Both common stock
continued listing standards would
increase the current publicly held
shares requirement. In addition, the
current $1,000,000 market value
requirement would be increased to a
$5,000,000 market value of publicly
held shares requirement under
Continued Listing Standard 1 and
$15,000,000 under Continued Listing
Standard 2. Continued Listing Standard
1 would replace the current net worth
requirement of $2,000,000 or $4,000,000
with a higher stockholders’ equity
requirement of $10,000,000. Continued
Listing Standard 2 would eliminate the
current net worth requirement, but
require companies to maintain a market
value of listed securities of $50,000,000
(in the case of non-U.S. companies, a
global market capitalization of
$50,000,000), or total assets and total
revenue of $50,000,000 each for the
most recently completed fiscal year or
two of the last three most recently
completed fiscal years. In addition, the
Exchange would require under both
common stock continued listing
standards that all common stock have
an average closing price of at least $1.00
over a consecutive 30-day trading
period, instead of the current $3 bid
price requirement.31 The Commission
notes that the proposed continued
listing standards for common stock,
common stock equivalent securities and
similar issues are substantially similar
25 See
26 See
PO 00000
Frm 00075
Fmt 4703
Sfmt 4703
30 See
proposed NYSE Arca Equities Rule 5.5(b).
noted above, issuers would have six months
to cure this deficiency. See proposed NYSE Arca
Equities Rule 5.5(b).
31 As
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69172
Federal Register / Vol. 71, No. 229 / Wednesday, November 29, 2006 / Notices
to The Nasdaq Global Market continued
listing standards.32
The Exchange also proposes to amend
the preferred stock (and similar issues)
and secondary classes of common stock
continued listing standards.33 The
Exchange would eliminate the current
net worth requirement and continuing
operations requirements. In addition,
the proposed new preferred continued
listing standards would contain a new
$1 bid price requirement. The
Commission notes that the proposed
continued listing standards for preferred
stock and similar issues and secondary
classes of common stock are
substantially similar to The Nasdaq
Global Market continued listing
standards.34
C. Other Changes
The proposed rule change would
permit the Exchange, rather than its
board of directors, to approve securities
for listing and to prescribe the form of
listing applications.35 In particular, the
Exchange may deny listing or apply
additional or more stringent criteria
based on any event, condition, or
circumstance that makes the listing of
the company inadvisable or
unwarranted in the opinion of the
Exchange. Such determination could be
made even if the company meets the
standards set forth below. The
Commission believes that it is
reasonable for the Exchange, based upon
its experience, to determine whether the
security of a company would be
appropriate for inclusion on NYSE Arca.
The Commission notes that this
amendment is similar to NYSE’s listing
standards.36 Further, with respect to the
continued listing standards of all
securities, the Exchange proposes to
require all issuers to comply with the
Exchange’s corporate governance
qualitative standards, rather than only
the independent directors/board
committees requirement in current
NYSE Arca Equities Rule 5.3(k).37 The
Commission believes that these
amendments are consistent with the
requirements of the Act.
D. Accelerated Approval
Pursuant to Section 19(b)(2) of the
Act,38 the Commission may not approve
32 See
Nasdaq Rule 4450(a)–(b).
proposed NYSE Arca Equities Rule 5.5(c).
34 See Nasdaq Rule 4450(h).
35 See proposed NYSE Arca Equities Rule 5.1(a)
and 5.2(a).
36 See NYSE Listed Company Manual Section
101.00.
37 See also NYSE Arca Equities Rule 5.5(k), which
sets forth other reasons for suspending or delisting
securities on the Exchange.
38 15 U.S.C. 78s(b)(2).
jlentini on PROD1PC65 with NOTICES
33 See
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15:37 Nov 28, 2006
Jkt 211001
any proposed rule change prior to the
30th day after the date of publication of
notice of the filing thereof, unless the
Commission finds good cause for so
doing and publishes its reasons for so
finding. The Exchange has requested the
Commission find good cause for
approving the proposed rule change
prior to the 30th day after the date of
publication of notice in the Federal
Register.
The Commission believes that it is
reasonable to grant accelerated approval
to allow for the efficient administration
of the Exchange’s initial and continued
listing programs as promptly as
possible. The Commission notes that the
proposed listing standards, while
significantly different than the
Exchange’s current listing standards, are
substantially similar to The Nasdaq
Global Market, which the Commission
previously approved. In addition, the
Commission notes that the proposed
listing standards would be in effect only
as a pilot program for a six-month
period.39 Accordingly, the Commission
believes that there is good cause,
pursuant to Sections 6(b)(5) of the Act 40
and 19(b)(2) of the Act,41 to grant
accelerated approval to the proposed
rule change prior to the 30th day after
the date of publication of notice in the
Federal Register.
V. Conclusion
For the foregoing reasons, the
Commission finds that the proposed
rule change is consistent with the Act
and the rules and regulations
thereunder applicable to a national
securities exchange, and, in particular,
with Section 6(b)(5) of the Act.42
It is therefore ordered, pursuant to
Section 19(b)(2) of the Act,43 that the
proposed rule change (SR–NYSEArca–
2006–85), is hereby approved on an
accelerated basis, as a six-month pilot,
until May 29, 2007.
39 In any request under Section 19(b) of the Act
for permanent approval or an extension of the pilot
period, the Exchange may wish to report on the
operations of the new standards during the pilot
period.
40 15 U.S.C. 78f(b)(5).
41 15 U.S.C. 78s(b)(2).
42 15 U.S.C. 78f(b)(5). The staff of the Division of
Market Regulation (‘‘Staff’’) would not recommend
enforcement action to the Commission under Rules
15g–2 through 15g–9 under the Act if broker-dealers
treat equity securities listed pursuant to the initial
and continued listing requirements set forth in
amended NYSE Arca Equities Rule 5 as meeting the
exclusion from the definition of penny stock
contained in Rule 3a51–1 udner the Act pursuant
to paragraph (a)(2) thereof. In taking this position,
the Staff notes in particular that these amended
listing requirements are equivalent, in all material
respects, to the listing requirments of the The
Nasdaq Global Market.
43 15 U.S.C. 78s(b)(2).
PO 00000
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Fmt 4703
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For the Commission, by the Division of
Market Regulation, pursuant to delegated
authority.44
Nancy M. Morris,
Secretary.
[FR Doc. E6–20211 Filed 11–28–06; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–54793; File No. SR–OCC–
2006–20]
Self-Regulatory Organizations; The
Options Clearing Corporation; Notice
of Filing of Proposed Rule Change To
Accelerate the Expiration Date of
American-Style Equity Options That
Have Been Adjusted To Call for CashOnly Delivery
November 20, 2006.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’) 1 and Rule 19b–4 thereunder,2
notice is hereby given that on October
26, 2006, The Options Clearing
Corporation (‘‘OCC’’) filed with the
Securities and Exchange Commission
(‘‘Commission’’) the proposed rule
change described in Items I, II, and III
below, which items have been prepared
primarily by OCC. The Commission is
publishing this notice to solicit
comments on the proposed rule change
from interested parties.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The purpose of the proposed rule
change is to accelerate the expiration
date of American-style equity options
that have been adjusted to call for cashonly delivery to the earliest practicable
regular expiration date. OCC currently
has such authority with respect to
European-style options that have been
so adjusted.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission,
OCC included statements concerning
the purpose of and basis for the
proposed rule change and discussed any
comments it received on the proposed
rule change. The text of these statements
may be examined at the places specified
in Item IV below. OCC has prepared
summaries, set forth in sections (A), (B),
44 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
1 15
E:\FR\FM\29NON1.SGM
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Agencies

[Federal Register Volume 71, Number 229 (Wednesday, November 29, 2006)]
[Notices]
[Pages 69166-69172]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-20211]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-54796; File No. SR-NYSEArca-2006-85]
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Order Granting Accelerated Approval of Proposed Rule Change
Relating to a Six-Month Pilot Program To Adopt New Initial and
Continued Listing Standards
November 20, 2006.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on November 17, 2006, NYSE Arca, Inc. (``NYSE Arca'' or ``Exchange'')
filed with the Securities and Exchange Commission (``Commission'' or
``SEC'') the proposed rule change as described in Items I and II below,
which Items have been substantially prepared by the Exchange. The
Commission is publishing this notice to solicit comment on the proposed
rule change from interested persons. For the reasons discussed below,
the Commission is granting accelerated approval of the proposed rule
change, as a six-month pilot, until May 29, 2007.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes, on a six-month pilot program basis (the
``Pilot Program''), to make significant revisions to its initial and
continued financial listing standards for operating companies.\3\ The
text of the proposed rule change is available on the Exchange's Web
site at www.nysearca.com, at the Exchange's Office of the Secretary and
at the Commission's Public Reference Room.
---------------------------------------------------------------------------
\3\ The Commission notes that the proposed changes are primarily
to the initial and continued listing standards of common stock and
common stock equivalent securities, preferred stock and similar
issues and secondary classes of common stock. Some changes are also
being made to the listing standards for bonds and debentures,
warrants, contingent value rights, other securities, and index-
linked exchangeable notes.
---------------------------------------------------------------------------
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of and basis for the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of these statements may be examined at
[[Page 69167]]
the places specified in Item III below. The self-regulatory
organization has prepared summaries, set forth in Sections A, B, and C
below, of the most significant aspects of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
On March 7, 2006, Archipelago Holdings, Inc. and the New York Stock
Exchange, Inc. completed their merger (the ``Merger''), creating NYSE
Group, Inc. (``NYSE Group''). NYSE Group is a holding company that
operates, among other subsidiaries, two securities exchanges: New York
Stock Exchange LLC (``NYSE'') and NYSE Arca Equities, Inc. (``NYSE Arca
Equities'' or the ``Corporation'').\4\ NYSE Arca Equities conducts its
equities trading operations through its equities trading facility, NYSE
Arca, L.L.C. (also referred to as the ``NYSE Arca Marketplace'').
---------------------------------------------------------------------------
\4\ The Commission notes that NYSE Arca is actually the
registered national securities exchange and NYSE Arca Equities is a
wholly-owned subsidiary of NYSE Arca.
---------------------------------------------------------------------------
In connection with the Merger, NYSE Arca Marketplace examined all
aspects of its listings program, and as a result, determined to make
substantial modifications and enhancements to its listing standards.
Accordingly, with this filing, NYSE Arca is proposing significant
revisions to the initial and continued listing criteria applicable to
operating companies set forth in NYSE Arca Equities Rule 5, completely
replacing the current tiered structure with a single set of numerical
and financial requirements.\5\ The principal objectives of these
proposed revisions are to upgrade the financial condition, shareholder
interest, and stature of issuers listing on NYSE Arca Marketplace; more
closely align NYSE Arca Marketplace's listing standards and structure
with the NYSE; and enhance NYSE Arca Marketplace's competitive
position.\6\
---------------------------------------------------------------------------
\5\ This filing relates only to quantitative (financial)
original and continued listing standards applicable to operating
companies. It does not relate to listing standards for corporate
governance, exchange traded funds, open and closed-end funds,
commodity-based trusts, trust issued receipts, portfolio depositary
receipts, investment company units or other types of structured
products. See supra note 3.
\6\ The Commission recently approved substantial revisions to
NYSE Arca's listing fees. See Securities Exchange Act Release No.
54007 (June 16, 2006), 71 FR 36155 (June 23, 2006) (SR-PCX-2006-16).
---------------------------------------------------------------------------
NYSE Arca Equities Rule 5.1(a) provides that the Board of the
Directors of the Exchange will make determinations as to whether to
list securities or admit securities to unlisted trading privileges on
the Exchange. Similarly, current NYSE Arca Equities Rule 5.2(a)
provides that the prescribed forms of applications to list securities
on the Exchange will be determined by the Board of Directors. This
filing proposes to amend both of the aforementioned requirements to
state that the Exchange will make such determinations. Such decisions
will be made by the chief executive officer of the Exchange or by staff
of the Exchange pursuant to authority delegated by the chief executive
officer. In addition, NYSE Arca Equities Rule 5.2(a) would be amended
to state that the Exchange may deny listing or apply additional or more
stringent criteria based on any event, condition, or circumstance that
makes the listing of the company inadvisable or unwarranted in the
opinion of the Exchange. Such determination could be made even if the
company meets the standards set forth below.
Summary of Current and Proposed Initial Listing Standards
Summary of Current Initial Listing Standards for Operating Companies
Currently, the NYSE Arca Marketplace has a two-tier listing
structure, classifying listed securities as either Tier I or Tier II.
For their common stock to qualify for initial listing as a Tier I
security, issuers must satisfy, among other things, the numerical
criteria set forth in NYSE Arca Equities Rule 5.2(c).\7\ To qualify for
initial listing as a Tier II security, issuers must satisfy, among
other things, the numerical criteria set forth in NYSE Arca Equities
Rule 5.2(k). Both Rule 5.2(c) and Rule 5.2(k) also provide that an
issuer may qualify under either a Basic or an Alternate set of listing
criteria. To be eligible to list, an issuer need only satisfy all of
the criteria under one of these four separate sets of standards.\8\
---------------------------------------------------------------------------
\7\ In addition to the numerical criteria set forth in Rules
5.2(c) and 5.2(k), issuers must also satisfy certain qualitative
requirements, including corporate governance-related standards set
forth in NYSE Arca Equities Rule 5.3. These corporate governance
rules are not the subject of this proposal.
\8\ NYSE Arca Equities Rule 5.2(a) provides that approval of
listing applications is a matter solely within the discretion of
NYSE Arca Equities, and the fact that an issuer may meet the
applicable listing requirements does not necessarily mean that its
application will be approved.
---------------------------------------------------------------------------
[[Page 69168]]
These requirements are:
----------------------------------------------------------------------------------------------------------------
Tier I (Rule 5.2(c)) Tier II (Rule 5.2(k))
-------------------------------------------------------------------
Basic Alternate Basic Alternate
----------------------------------------------------------------------------------------------------------------
Net tangible assets \9\..................... ............... ............... $2,000,000 ...............
Net worth \10\.............................. $4,000,000 $12,000,000 ............... $8,000,000
Pre-tax income \11\......................... $750,000 ............... ............... ...............
Net income \12\............................. ............... ............... $100,000 ...............
Public float (shares)....................... 500,000 1,000,000 500,000 1,000,000
Public beneficial holders \13\.............. 800 or 400 400 500 500
Market value................................ $3,000,000 $15,000,000 $1,500,000 $2,000,000
Operating history........................... ............... 3 years 3 years ...............
Price \14\.................................. $5 $3 $3 $1
----------------------------------------------------------------------------------------------------------------
Proposed Initial Listing Standards for Common Stock and Common Stock
Equivalent Securities
With this filing, NYSE Arca is proposing to eliminate the Tier I
and II classifications and replace, in their entirety, the current Tier
I and Tier II numerical standards for initial listing for common stock
set forth in NYSE Arca Rules 5.2(c) and (k), respectively. Companies
whose common stock is listed with a Tier II designation will be able to
remain listed under the existing Tier II rules as long as they are in
compliance with the maintenance requirements of Arca Equities Rule
5.5(h). However, the Exchange will no longer list any new issuers or
additional classes of securities with a Tier II designation.
---------------------------------------------------------------------------
\9\ NYSE Arca Equities Rule 5.1(b)(10) defines ``net tangible
assets'' as the amount of funds remaining after deducting intangible
assets from stockholders' equity. This rule further provides that
intangible assets include, but are not limited to, goodwill,
patents, copyrights, trademarks, leaseholds, franchises, licenses,
permits, research and development costs, organization costs, and
similar types of property rights.
\10\ NYSE Arca Equities Rule 5.1(b)(9) defines ``net worth'' as
total assets (excluding the value of goodwill) less total
liabilities.
\11\ NYSE Arca Equities Rule 5.2(c)(4) provides that an issuer
must have pre-tax income from continuing operations of at least
$750,000 in the last fiscal year or two of the last three fiscal
years.
\12\ NYSE Arca Equities Rule 5.2(k)(4) provides that an issuer
must have net income from continuing operations of at least $100,000
in the last fiscal year or in two of the last three fiscal years, or
total net tangible assets of $2,500,000.
\13\ NYSE Arca Equities Rule 5.2(c)(2) provides that issuers
must have at least 800 public beneficial holders if the issuer has
at least 500,000 and less than 1,000,000 shares publicly held, or a
minimum of 400 public beneficial holders if the issuer has either:
(i) At least 1,000,000 shares publicly held; or (ii) at least
500,000 shares publicly held and average daily trading volume in
excess of 2,000 shares for the six months preceding the date of
application.
\14\ NYSE Arca Equities Rules 5.2(c)(5) and 5.2(k)(5) provide
that the issuer must maintain the minimum price for the majority of
business days for the most recent six-month period prior to the date
of application, and the price must be at or above the minimum per
share at the time of application.
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In place of the existing Tier I and Tier II standards, this filing
proposes to require for initial listing that, at the time of initial
listing, the listed class of common stock or common stock equivalent
securities \15\ shall have:
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\15\ Proposed NYSE Arca Equities Rule 5.1(b)(26) defines common
stock equivalent as ``ordinary shares, ADRs, American Depository
Shares, global depository shares, depository shares, shares or
certificates of beneficial interest of trusts, and other similar
issues that have the same characteristics of common stock.''
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At least 1.1 million publicly held shares.
A closing price per share of $5 or more.
A minimum of 400 round lot shareholders.
In addition, the requirements of one of Standards One, Two or Three
below must be met:
Standard One
The issuer of the security had annual income from
continuing operations before income taxes of at least $1 million in the
most recently completed fiscal year or in two of the last three most
recently completed fiscal years.
The market value of publicly held shares is at least $8
million.
The issuer of the security has stockholders' equity of at
least $15 million.
Standard Two
The issuer of the security has stockholders' equity of at
least $30 million.
The market value of publicly held shares is at least $18
million.
The issuer has a two-year operating history.
Standard Three
The market value of publicly held shares is at least $20
million.
The issuer has:
[cir] A market value of listed securities of $75 million (currently
traded issuers must meet this requirement and the $5 closing price
requirement for 90 consecutive trading days prior to applying for
listing); or
[cir] Total assets and total revenue of $75 million each for the
most recently completed fiscal year or two of the last three most
recently completed fiscal years.
In evaluating compliance with these standards, the Exchange will
consider amounts contained in a company's pro forma financial
statements provided in a filing with the Commission pursuant to
Commission rules and regulations governing Article 11 ``Pro forma
information of Regulation S-X Part 210--Form and Content of and
Requirements for Financial Statements.'' This shall include, without
limitation, adjustments relating to the proceeds of an offering. In the
case of foreign private issuers (as such term is defined in Rule 3b-4
under the Act), the Exchange will take into account global market
capitalization in evaluating compliance with the market capitalization
requirements of this rule.
This revised rule shall apply to common stock and common stock
equivalents, including, but not limited to: Ordinary shares, American
Depository Receipts (``ADRs''), American Depository Shares, global
depository shares, depository shares, shares or certificates of
beneficial interest of trusts, and other similar issues that have the
same characteristics of common stock.
Summary of Current Initial Listing Standards for Preferred Stock and
Similar Issues
Currently, as set forth in NYSE Arca Equities Rule 5.2(d), in the
case of preferred stock and similar issues, the following listing
requirements among others must be met:
The issuer must meet the net worth and earnings
requirements as set forth in the Tier I Basic Listing Requirements
under Rule 5.2(c), and must meet and appear to be able to service the
dividend requirements for the preferred stock.
If the company's common stock is traded on NYSE Arca or on
either the American Stock Exchange LLC
[[Page 69169]]
(``Amex'') or NYSE, the following public distribution requirements must
be met: At least 100,000 preferred shares publicly held and an
aggregate market value of at least $2,000,000, and a minimum closing
bid price of $10.
If the related common stock is not traded on any of the
above referenced exchanges then the requirements are: At least 400,000
preferred shares publicly held and an aggregate market value of at
least $4,000,000, and a minimum closing bid price of $10. At least 800
public beneficial holders of 100 shares or more shall also be required.
Proposed Initial Listing Standards for Preferred Stock and Similar
Issues and Secondary Classes of Common Stock
For initial listing, if the common stock or common stock equity
equivalent security of the issuer is listed on the Exchange or on the
NYSE, The Nasdaq Global Market or the Amex, the issue shall have:
At least 200,000 publicly held shares;
A market value of publicly held shares of at least
$4,000,000;
A minimum closing price per share of $5;
A minimum of 100 round lot shareholders.
Alternatively, in the event the issuer's common stock or common
stock equivalent security is not listed on either the Exchange or on
the NYSE, The Nasdaq Global Market or the Amex, the preferred stock
and/or secondary class of common stock may be traded on the Exchange so
long as the security satisfies the initial listing criteria for common
stock.
Summary of Current and Proposed Continued Listing Standards
Current Continued Listing Standards for Common Stock
To qualify for continued listing as a Tier I security, issuers must
satisfy, among other things, the numerical criteria set forth in NYSE
Arca Equities Rule 5.5(b). To qualify for continued listing as a Tier
II security, issuers must satisfy, among other things, the numerical
criteria set forth in NYSE Arca Equities Rule 5.5(h).
These requirements are:
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\16\ If the issuer has sustained losses from continuing
operations and/or net losses in two of the last three fiscal years,
then it must have a minimum of $2 million in net worth. If the
issuer has sustained losses from continuing operations and/or net
losses in three of the last four fiscal years, then it must have a
minimum of $4 million in net worth.
\17\ Alternatively, an issuer must have at least 300 beneficial
holders of 100 shares or more.
\18\ NYSE Arca Equities Rules 5.5(b) and (h) provide that NYSE
Arca Equities may waive the minimum bid price requirements upon
consideration of market conditions, the issuer's capitalization, the
number of outstanding and publicly held shares, and any other
factors NYSE Arca Equities deems appropriate. This proposal
eliminates this provision and replaces it with the ``cure period''
set forth in revised Rule 5.5(b).
----------------------------------------------------------------------------------------------------------------
Tier I (Rule 5.5(b)) Tier II (Rule 5.5(h))
----------------------------------------------------------------------------------------------------------------
Net tangible assets or Net worth........ $2,000,000 or 4,000,000 $500,000 or 2,000,000.
\16\.
Public float (shares)................... 200,000.................... 300,000.
Public beneficial holders............... 400 \17\................... 250.
Market value............................ $1,000,000................. $500,000.
Bid price \18\.......................... $3......................... $1.
----------------------------------------------------------------------------------------------------------------
Proposed Continued Listing Standards for Common Stock and Common Stock
Equivalent Securities
With this filing, NYSE Arca is proposing to eliminate the two
tiered structure and replace, in their entirety, the current Tier I and
Tier II numerical standards for continued listing for common stock set
forth in NYSE Arca Rules 5.5(b) and (h), respectively, except that Rule
5.5(h) will continue to be applied to common stocks listed with a Tier
II designation prior to the effectiveness of this filing. In their
place, this filing proposes in new Rule 5.5(b) to require for continued
listing that a listed common stock must meet the criteria set forth in
either Continued Listing Standard One or Continued Listing Standard Two
below to continue to remain listed on the Exchange. All of the existing
Tier I issuers and securities currently meet the requirements of the
proposed continued listing standards. As such, the Exchange does not
need to provide a phase in period for compliance with the new rules and
will be able to apply them as soon as the Commission approves the Pilot
Program.
Under the proposed new standards, a listed common stock must meet
each of the criteria set forth in Continued Listing Standards One or
Two below to continue to remain listed on the Exchange.
Continued Listing Standard One
750,000 publicly held shares;
Market value of publicly held shares of $5 million;
The issuer has stockholders' equity of at least $10
million; and
400 shareholders of round lots.
Continued Listing Standard Two
The issuer has:
[cir] A market value of listed securities of $50 million or, in the
case of non-U.S. companies, a global market capitalization of $50
million; or
[cir] total assets and total revenue of $50 million each for the
most recently completed fiscal year or two of the last three most
recently completed fiscal years.
1,100,000 shares publicly held;
Market value of publicly held shares of $15 million; and
400 shareholders of round lots.
In the case of a non-U.S. company with ADRs listed on the Exchange,
the term ``global market capitalization'' means (x) the closing sale
price per share of the common stock or common stock equivalent security
underlying the ADRs multiplied by (y) the number of shares of such
common stock or common stock equivalent security outstanding worldwide
(including any shares underlying outstanding ADRs).
In addition, an issuer will also be considered to be below
compliance standards if the average closing price of a security is less
than $1.00 over a consecutive 30 trading-day period. Once notified, the
issuer must bring its share price and average share price back above
$1.00 by six months following receipt of the notification. The issuer
must, however, notify the Exchange, within 10 business days of receipt
of the notification, of its intent to cure this deficiency or be
subject to suspension and delisting procedures. Once a U.S. issuer is
notified that it is below compliance, it is required to issue a press
release disclosing the fact that it has fallen below the continued
listing standards of the Exchange concurrent with filing notice of such
non-compliance with the SEC as required by Form 8-K. Once a foreign
private issuer is notified that it is below compliance, the issuer has
30 days to issue a press
[[Page 69170]]
release disclosing the fact that it has fallen below the continued
listing standards of the Exchange. If the foreign private issuer fails
to issue this press release during the allotted 30 days, the Exchange
will issue the requisite press release. In the event that at the
expiration of the six-month cure period, both a $1.00 share price and a
$1.00 average share price over the preceding 30 trading days are not
attained, the Exchange will commence suspension and delisting
procedures.
Notwithstanding the foregoing, if an issuer determines that, if
necessary, it will cure the price condition by taking an action that
will require approval of its shareholders, it must so inform the
Exchange in the above referenced notification, must obtain the
shareholder approval by no later than its next annual meeting, and must
implement the action promptly thereafter. The price condition will be
deemed cured if the price promptly exceeds $1.00 per share, and the
price remains above the level for at least the following 30 trading
days.
Notwithstanding the foregoing, if the subject security is not the
primary trading common equity security of the issuer (e.g., a tracking
stock or a preferred class), as discussed in more detail below, the
Exchange may determine whether to apply this test to such security
after evaluating the financial status of the issuer.
Continued Listing Standards for Preferred Stock and Similar Issues and
Secondary Classes of Common Stock
NYSE Arca proposes to replace its existing continued listing
standards for preferred stock and similar issues with the requirements
described below and to also apply those requirements to secondary
classes of common stock.
For continued listing, if the common stock or common stock equity
equivalent security of the issuer is listed on the Exchange or on the
NYSE, The Nasdaq Global Market or the Amex, the issue shall have:
At least 100,000 publicly held shares;
A market value of publicly held shares of at least
$1,000,000;
A minimum closing price per share of $1;
A minimum of 100 round lot shareholders.
If the preferred stock or similar issue is the issuer's only
security listed on the Exchange, after evaluating the financial status
of the issuer, the Exchange may choose to apply the six-month cure
period provided under the proposed common stock continued listing
standards to any failure to maintain a $1 closing price.
Alternatively, in the event the issuer's common stock or common
stock equivalent security is not listed on either the Exchange or on
the NYSE, The Nasdaq Global Market or the Amex, the preferred stock
and/or secondary class of common stock may be listed on the Exchange so
long as the security satisfies the continued listing criteria for
common stock.
Other Securities Pre-Tax Income Requirement
To conform to the parallel provision in Standard One of the
proposed common stock initial listing standards, the Exchange proposes
to increase the pre-tax income from continuing operations standard of
NYSE Arca Equities Rule 5.2(e) (``Bonds and Debentures''), NYSE Arca
Equities Rule 5.2(g) (``Contingent Value Rights''), NYSE Arca Equities
Rule 5.2(j)(1) (``Other Securities'') and NYSE Arca Equities Rule
5.2(j)(4) (``Index-Linked Exchangeable Notes'') from $750,000 to $1
million.\19\
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\19\ The Commission notes that, among other things, the Exchange
proposes other clarifying changes, additional definitions, and
different net worth standards for bonds and debentures, contingent
value rights, other securities, and index-linked exchangeable notes.
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2. Statutory Basis
The Exchange believes the proposed rule change is consistent with
Section 6(b) of the Act,\20\ in general, and furthers the objectives of
Section 6(b)(5) of the Act \21\ in particular, because it is designed
to prevent fraudulent and manipulative acts and practices, to promote
just and equitable principles of trade, to foster cooperation and
coordination with persons engaged in facilitating transactions in
securities, and to remove impediments to and perfect the mechanism of a
free and open market and a national market system.
---------------------------------------------------------------------------
\20\ 15 U.S.C. 78f(b).
\21\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
Written comments on the proposed rule change were neither solicited
nor received.
III. Solicitation of Comments
Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
Send an e-mail to rule-comments@sec.gov. Please include
File Number SR-NYSEArca-2006-85 on the subject line.
Paper Comments:
Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEArca-2006-85. This
file number should be included on the subject line if e-mail is used.
To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (http://www.sec.gov/
rules/sro.shtml). Copies of the submission, all subsequent amendments,
all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for inspection
and copying in the Commission's Public Reference Room. Copies of such
filing also will be available for inspection and copying at the
principal office of the Exchange. All comments received will be posted
without change; the Commission does not edit personal identifying
information from submissions. You should submit only information that
you wish to make available publicly. All submissions should refer to
File Number SR-NYSEArca-2006-85 and should be submitted on or before
December 20, 2006.
IV. Commission's Findings and Order Granting Accelerated Approval of
Proposed Rule Change
The Commission finds that the proposed rule change is consistent
with the requirements of the Act and the rules and regulations
thereunder
[[Page 69171]]
applicable to a national securities exchange.\22\ In particular, the
Commission finds that the proposed rule change is consistent with
Section 6(b)(5) of the Act,\23\ which requires that an exchange have
rules designed, among other things, to promote just and equitable
principles of trade, to remove impediments to and perfect the mechanism
of a free and open market and a national market system, and are not
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers.
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\22\ In approving this proposed rule change, the Commission
notes that it has considered the proposed rules' impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
\23\ 15 U.S.C. 78f(b)(5).
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The Exchange proposes to make significant changes to its initial
and continued listing standards. Among other things, the Exchange would
no longer have a two-tiered listing structure. The Exchange represents
that all existing Tier I issuers would meet one of the proposed
continued listing standards set forth in proposed NYSE Arca Equities
Rule 5.5(h). Further, the proposal would include a grandfather clause
to ensure that the existing Tier II issuers would have the option to
remain listed on the Exchange for as long as they meet the continued
listing standards. The Commission believes that the proposal is
designed not to permit unfair discrimination among issuers, since the
proposal would treat all prospective issuers and existing Exchange-
listed issuers equally.
Although the proposal significantly restructures and changes NYSE
Arca listing standards, as discussed below, the changes are
substantially similar to The Nasdaq Global Market initial and continued
listing standards. Based on this, the Commission believes it is
reasonable for the Exchange to determine that companies that meet these
new listing standards are appropriate for inclusion and continued
listing on NYSE Arca. For these reasons, as discussed in more details
below, the Commission finds that the proposal is consistent with the
requirements of the Act.
A. Initial Listing Standards
As proposed, the Exchange's common stock or common stock equivalent
securities \24\ initial listing standards would be significantly
modified and the Exchange would no longer have Tier I or Tier II
securities. Common stock or common stock equivalent securities would
need: (1) At least 1.1 million publicly held shares; (2) a closing
price per share of $5 or more; and (3) a minimum of 400 round lot
shareholders, in addition to meeting the additional standards set forth
in one of three alternatives.\25\ Among other things, Standard 1 and
Standard 2 would replace the current net worth requirement with an
increased stockholders' equity requirement of $15,000,000 and
$30,000,000, respectively. In addition, under Standard 3, the current
net worth requirement would be eliminated and the issuer would be
required to have a market value of listed securities of $75,000,000 or
total assets and total revenue of $75,000,000 each for the most
recently completed fiscal year or two of the last three most recently
completed fiscal years. The Commission notes that the proposed initial
listing standards for common stock or common stock equivalent
securities are substantially similar to The Nasdaq Global Market
initial listing standards.\26\
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\24\ See proposed NYSE Arca Equities Rule 5.1(b)(26).
\25\ See proposed NYSE Arca Equities Rule 5.2(c).
\26\ See Nasdaq Rule 4420(a)-(c).
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The Exchange's proposed preferred stock (and similar issues) and
secondary classes of common stock initial listing standards would also
be significantly modified. The Exchange would eliminate the current net
worth and earnings requirements, and increase the current publicly held
shares requirement and market value requirement. The Exchange would
also lower the current bid price requirement. As proposed, if the
common stock or common stock equivalent security of the issuer is
listed on the Exchange, NYSE, The Nasdaq Global Market, or Amex, these
securities must have: (1) At least 200,000 publicly held shares; (2) a
market value of publicly held shares of at least $4 million; (3) a
closing price per share of $5 or more; and (4) a minimum of 100 round
lot shareholders.\27\ If the common stock or common stock equivalent
security of the issuer is not listed on the Exchange, NYSE, The Nasdaq
Global Market, or Amex, these securities must satisfy the initial
listing standards for common stock.\28\ The Commission notes that these
requirements are substantially similar to The Nasdaq Global Market
initial listing standards.\29\
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\27\ See proposed NYSE Arca Equities Rule 5.2(d).
\28\ See proposed NYSE Arca Equities Rule 5.2(d).
\29\ See Nasdaq Rule 4420(k).
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The Exchange also proposes to amend the initial listing standards
for bonds and debentures and contingent value rights by increasing the
net worth requirement and pre-tax income requirement consistent with
the proposed common stock initial listing standards. In addition, the
Exchange proposes to amend the initial listing standards for other
securities and index-linked exchangeable notes to add a pre-tax income
requirement, consistent with the pre-tax income requirements of the
common stock initial listing standards. The pre-tax income requirement
for these securities is being raised from $750,000 to $1,000,000.
Based on the foregoing, the Commission believes that the proposed
amendments to the NYSE Arca Equities initial listing standards are
consistent with the requirements of the Act.
B. Continued Listing Standards
The Commission believes that the proposed amendments to the NYSE
Arca Equities continued listing standards are consistent with the
requirements of the Act. The Exchange proposes to amend the common
stock or common stock equivalent securities continued listing standard,
by requiring that common stock must meet the standards set forth in one
of two alternatives.\30\ Both common stock continued listing standards
would increase the current publicly held shares requirement. In
addition, the current $1,000,000 market value requirement would be
increased to a $5,000,000 market value of publicly held shares
requirement under Continued Listing Standard 1 and $15,000,000 under
Continued Listing Standard 2. Continued Listing Standard 1 would
replace the current net worth requirement of $2,000,000 or $4,000,000
with a higher stockholders' equity requirement of $10,000,000.
Continued Listing Standard 2 would eliminate the current net worth
requirement, but require companies to maintain a market value of listed
securities of $50,000,000 (in the case of non-U.S. companies, a global
market capitalization of $50,000,000), or total assets and total
revenue of $50,000,000 each for the most recently completed fiscal year
or two of the last three most recently completed fiscal years. In
addition, the Exchange would require under both common stock continued
listing standards that all common stock have an average closing price
of at least $1.00 over a consecutive 30-day trading period, instead of
the current $3 bid price requirement.\31\ The Commission notes that the
proposed continued listing standards for common stock, common stock
equivalent securities and similar issues are substantially similar
[[Page 69172]]
to The Nasdaq Global Market continued listing standards.\32\
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\30\ See proposed NYSE Arca Equities Rule 5.5(b).
\31\ As noted above, issuers would have six months to cure this
deficiency. See proposed NYSE Arca Equities Rule 5.5(b).
\32\ See Nasdaq Rule 4450(a)-(b).
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The Exchange also proposes to amend the preferred stock (and
similar issues) and secondary classes of common stock continued listing
standards.\33\ The Exchange would eliminate the current net worth
requirement and continuing operations requirements. In addition, the
proposed new preferred continued listing standards would contain a new
$1 bid price requirement. The Commission notes that the proposed
continued listing standards for preferred stock and similar issues and
secondary classes of common stock are substantially similar to The
Nasdaq Global Market continued listing standards.\34\
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\33\ See proposed NYSE Arca Equities Rule 5.5(c).
\34\ See Nasdaq Rule 4450(h).
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C. Other Changes
The proposed rule change would permit the Exchange, rather than its
board of directors, to approve securities for listing and to prescribe
the form of listing applications.\35\ In particular, the Exchange may
deny listing or apply additional or more stringent criteria based on
any event, condition, or circumstance that makes the listing of the
company inadvisable or unwarranted in the opinion of the Exchange. Such
determination could be made even if the company meets the standards set
forth below. The Commission believes that it is reasonable for the
Exchange, based upon its experience, to determine whether the security
of a company would be appropriate for inclusion on NYSE Arca. The
Commission notes that this amendment is similar to NYSE's listing
standards.\36\ Further, with respect to the continued listing standards
of all securities, the Exchange proposes to require all issuers to
comply with the Exchange's corporate governance qualitative standards,
rather than only the independent directors/board committees requirement
in current NYSE Arca Equities Rule 5.3(k).\37\ The Commission believes
that these amendments are consistent with the requirements of the Act.
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\35\ See proposed NYSE Arca Equities Rule 5.1(a) and 5.2(a).
\36\ See NYSE Listed Company Manual Section 101.00.
\37\ See also NYSE Arca Equities Rule 5.5(k), which sets forth
other reasons for suspending or delisting securities on the
Exchange.
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D. Accelerated Approval
Pursuant to Section 19(b)(2) of the Act,\38\ the Commission may not
approve any proposed rule change prior to the 30th day after the date
of publication of notice of the filing thereof, unless the Commission
finds good cause for so doing and publishes its reasons for so finding.
The Exchange has requested the Commission find good cause for approving
the proposed rule change prior to the 30th day after the date of
publication of notice in the Federal Register.
---------------------------------------------------------------------------
\38\ 15 U.S.C. 78s(b)(2).
---------------------------------------------------------------------------
The Commission believes that it is reasonable to grant accelerated
approval to allow for the efficient administration of the Exchange's
initial and continued listing programs as promptly as possible. The
Commission notes that the proposed listing standards, while
significantly different than the Exchange's current listing standards,
are substantially similar to The Nasdaq Global Market, which the
Commission previously approved. In addition, the Commission notes that
the proposed listing standards would be in effect only as a pilot
program for a six-month period.\39\ Accordingly, the Commission
believes that there is good cause, pursuant to Sections 6(b)(5) of the
Act \40\ and 19(b)(2) of the Act,\41\ to grant accelerated approval to
the proposed rule change prior to the 30th day after the date of
publication of notice in the Federal Register.
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\39\ In any request under Section 19(b) of the Act for permanent
approval or an extension of the pilot period, the Exchange may wish
to report on the operations of the new standards during the pilot
period.
\40\ 15 U.S.C. 78f(b)(5).
\41\ 15 U.S.C. 78s(b)(2).
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V. Conclusion
For the foregoing reasons, the Commission finds that the proposed
rule change is consistent with the Act and the rules and regulations
thereunder applicable to a national securities exchange, and, in
particular, with Section 6(b)(5) of the Act.\42\
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\42\ 15 U.S.C. 78f(b)(5). The staff of the Division of Market
Regulation (``Staff'') would not recommend enforcement action to the
Commission under Rules 15g-2 through 15g-9 under the Act if broker-
dealers treat equity securities listed pursuant to the initial and
continued listing requirements set forth in amended NYSE Arca
Equities Rule 5 as meeting the exclusion from the definition of
penny stock contained in Rule 3a51-1 udner the Act pursuant to
paragraph (a)(2) thereof. In taking this position, the Staff notes
in particular that these amended listing requirements are
equivalent, in all material respects, to the listing requirments of
the The Nasdaq Global Market.
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It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\43\ that the proposed rule change (SR-NYSEArca-2006-85), is hereby
approved on an accelerated basis, as a six-month pilot, until May 29,
2007.
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\43\ 15 U.S.C. 78s(b)(2).
For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\44\
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\44\ 17 CFR 200.30-3(a)(12).
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Nancy M. Morris,
Secretary.
[FR Doc. E6-20211 Filed 11-28-06; 8:45 am]
BILLING CODE 8011-01-P